SC DECLARES ECP DECISION ON PUNJAB POLLS DELAY VOID AB-INITIO: Constitution triumphs

The Supreme Court on Tuesday voided the Election Commission of Pakistan’s (ECP) decision on Punjab and Khyber Pakhtunkhwa (KP) election. A three-member SC bench comprising Chief Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Ijaz Ul Ahsan announced the decision in open court and declared the ECP’s decision to hold polls on October 8 as unconstitutional. The court directed the ECP to reinstate its previous election schedule under which polls were to be held and extended it by 13 days. The court clarified that the ECP could not go beyond the 90-day stipulated time. The court order stated that 13 days were wasted because of the ECP’s unlawful decision. The court also directed the caretaker government in Punjab to assist the ECP and instructed the ECP to inform the court if the government refused to do so. The constitution and laws of the Election Commission did not allow extension of the date, it added. The order further stated that 13 days were wasted because of the ECP’s unlawful decision. According to the decision, candidates would be able to submit nomination papers from April 10, the Election Commission would publish the list of candidates on April 19, and electoral symbols would be issued by April 20. The court also directed the government to release Rs 21 billion for elections in Punjab by April 10 and told the ECP to submit a report on the matter in court the same day. In the case of non-provision of funds, the court will issue an appropriate order, it added. The Supreme Court, in its verdict, states that the ECP’s order dated March 22, 2023, is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect, and is hereby quashed. “Neither the Constitution nor the law empowers the commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution,” said the verdict. The verdict said that the election programme for the general election to the Punjab Assembly stands “revived and restored” immediately with a few modifications. It added that the modifications were made as the programme had reached stage 5 when the ECP announced its order which “unlawfully purported to withdraw the election programme” and the remaining 6-11 stages could not be given effect. The verdict said that the remaining stages have to be moved forward to take account of the lost period as 13 days have been lost and the programme must be modified accordingly. The apex court’s verdict also said that the polling day must be moved forward from April 30 to May 14. It also stated that the electoral body had said that it would be able to organise and conduct the general elections in Punjab and KP if it was provided with aid and assistance by the “executive authorities”. In line with its demand, the SC then ordered the federal government to release and provide ECP with funds worth Rs21 billion in any case by April 10 for general elections in Punjab and KP. It also directed the ECP to file a report on the issue by April 11 “The Commission shall, by 11.04.2023, file a report in the Court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the Bench for consideration in Chambers. If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard. The Commission shall be entitled to utilise the funds in the first instance for the purposes of the general election to the Punjab Assembly. If there is thereafter a shortfall for purposes of the general election to the KPK Assembly, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate,” said the verdict.Moreover, the caretaker cabinet of the Punjab government, the chief secretary and the inspector general police (IGP) Punjab must provide a plan to the ECP including sufficient personnel for election duties and security purposes by April 10 for the polls. It also directed the Punjab government and officials in the discharge of constitutional and legal duties should provide aid and assistance to the Election Commission. “The federal government must, in the exercise of its powers and position in terms of Article 243(1) of the Constitution, and all other constitutional and legal powers enabling it in that behalf, and in the discharge of its constitutional duties under Articles 148(3) and 220, provide all such aid and assistance to the commission as required by it for the holding and conduct of the general elections to the Punjab and KP assemblies,” said the verdict. The federal government has also been directed to make available all necessary personnel whether from the armed forces, Rangers, Frontier Constabulary and all other forces under the government’s direct, indirect or ultimate command and control. The verdict also said that the federal government must provide a plan which should be acceptable to the ECP by April 17, adding that the commission must approach the Supreme Court if the federal and caretaker Punjab government fails to assist the ECP. On the issue of the verdict’s majority, the verdict stated that the court’s attention was drawn to certain pending matters – SMC 1/2023 and CP Nos. 1 and 2/2023 – which were heard and decided by a five-member bench on March 1 by a majority of 3:2 (Umar Ata Bandial, CJ and Munib Akhtar and Muhammad Ali Mazhar, JJ; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ dissenting). “In particular, our attention has been drawn to the detailed reasons of the two learned judges in minority (released on 27.03.2023), wherein it is, inter alia, stated that the said matters were decided (and dismissed) by a majority of 4:3. Respectfully, the position as claimed by the learned judges in minority is erroneous and not sustainable in law,” said the verdict. It said that the attention has also been drawn to the March 29 order made in SMC 4/2022 by a majority of 2:1 by a three-member bench – Justice Qazi Faez Isa and Justice Amin-Ud-Din Khan, JJ; Shahid Waheed, JJ dissenting. “The hearing of the present matter remained, and its decision by this bench is, wholly unaffected by any observations made in the aforesaid majority order,” it added. Talking about the KP polls, the verdict said that the present petitioners have also sought relief, learned counsel who entered an appearance on behalf of the KP governor withdrew from such appearance on account of a certain stand taken by a political party which learned counsel was also representing. “In such circumstances, the matter relating to the KP is not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate,” the verdict said.